In this issue...
Watts v. WCAB . . . . . . . . 1
Vol. X No.8
August 2004
COMPENSATION
NEWS
MONTHLY REPORT
90 DAY DENIAL MAY BE REBUTTED
WITH REASONABLE DILIGENCE
This is a non
published case.
T
he applicant filed a
workers' compensation
claim form on
November 27, 2000. A delay
later issued on December 21,
2000. This is past the 14 day
time limit. On February 26, 2001
the adjusted decided to deny the
claim. The applicant received the
denial on February 27, 2001. This
was 92 days after the claim form
was received.
The case was heard by a
Workers' Compensation Judge
(WCJ) that first determined that
the denial was timely (within 90
days). Therefore, Labor Code
section 5402, which presumes
compensability, did not apply
because the denial was timely.
The WCJ found the
psychiatric case was not
compensable because of a good
faith personnel action under
Labor Code section 3208.3.
The applicant filed a petition
for reconsideration and the WCJ
recalculated the 90 days and
found the denial untimely. The
WCJ, concluded, however, that
the medical evidence rebutted the
presumption. The Workers'
Compensation Appeals Board
(WCAB) agreed with the WCJ
and indicated that the medical
evidence could not have been
reasonably obtained in the 90
days.
The appellate court on review
indicated that medical evidence
should be obtained within 90
days. The court indicated that the
adjusters testimony that the
adjuster could not obtain a
medical within 90 days was
sufficient. The doctors were too
busy to set an appointment within
the 90 days.
The case is also interesting to
read for the determination of
what qualifies as a "good faith
personnel" action. In this case
two-thirds of the applicants
psychological injury was caused
by "good faith personnel
actions".
Therefore, the applicant did
not meet the standard for a
psychiatric injury.
Editor: Harvey Brown
Firm: Samuelsen, Gonzalez,
Valenzuela and Brown
Address: 18500 Von
Karman #470, Irvine
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